After months of hearings designed to build its case against Trump and his other allies involved in the “Stop the Steal” rally at the U.S. Capitol on Jan. 6, committee members announced they would be making four criminal referrals to the DOJ for further investigation and potential charges.
These included a bevy of charges ranging from obstruction of an official proceeding and conspiracy to defraud the United States to allegations of conspiracy to make a false statement, and the intention to “incite,” “assist” or “aid or comfort” an insurrection.
After two years of effort—and a Democratically-controlled DOJ at its backs—House Democrats are confident their recommendations are likely to stick.
“I am very confident,” Maryland Democratic Congressman Jamie Raskin said of the likelihood of potential charges against the former president in an interview on MSNBC’s ‘Morning Joe’ Tuesday morning. “We only stated charges where we thought that the evidence was abundant or overwhelming and we believe the prosecutors could satisfy easily every element of each of the offenses. It makes intuitive consequence as well. Interference with a federal proceeding was Donald Trump’s entire purpose and plan. ‘Stop the Steal’ meant going in and obstructing our count of the Electoral College vote.”
Newsweek has contacted Trump’s office for comment.
Celebrations, however, might be premature—especially given an incoming Republican majority and the former president’s active campaign for re-election. Here’s why.
What Do Trump’s Criminal Referrals Mean?
A criminal referral does not mean criminal charges
Federal investigators have already proven their willingness to pursue a criminal investigation against the former president following a raid of his Mar-a-Lago home to retrieve a number of classified documents he removed from the White House.
They have also used counts of obstruction in several hundred criminal cases against rioters who disrupted the certification of the election on Jan. 6, allegedly at the whim of the president.
However, the department—as well as Special Counsel Jack Smith—is under no obligation to adopt the committee’s conclusions or to follow its recommendations. Particularly with the visibility that comes closely behind indictments against a former president of the United States.
“Just for expectation setting—as compelling as the Jan 6 Committee work has been—criminal referrals from the Committee are not binding,” former White House Press Secretary Jen Psaki wrote on Twitter earlier this month. “The course of action DOJ will take is not based on whether or not there are referrals.”
There is a high bar for criminal charges
If, however, the Department of Justice does choose to pursue criminal charges against the former president and his allies, they likely need to be sure their case is an airtight one. Any case against the former president is likely to be tried at the highest levels of the judicial system. And already, many of the charges brought against Jan. 6 defendants have faced some scrutiny.
House investigators say Trump clearly acted with a “corrupt’ purpose” in his effort to overturn the result of the election—both in his prior warnings of potentially illegal activity by aides as well as correspondence he’d made seeking to overturn the result in states like Georgia. However, some attorneys representing rioters have challenged prosecutors’ use of federal obstruction statutes in a federal appeals court in Washington, saying DOJ officials have sought to use the law to criminalize the right to protest protected under the First Amendment.
The law could be on their side there: Earlier this year, a California judge issued an opinion in a case against Trump’s former attorney, John Eastman, stating there was sufficient evidence to argue that Trump and his allies plotted to defraud the U.S. government and to obstruct an official proceeding.
But the DOJ would also need to prove conspiracy charges related to his office’s wide-ranging scheme to send fake slates of electors to Congress and the National Archives declaring that he, rather than Democratic candidate Joe Biden, was the victor in several key states he lost, as well as whether Trump actually pre-planned an effort to use the mob to lead an attempted insurrection against Congress and the United States.
While conspiracy could be easier to prove, the bar for insurrection charges is extremely high, even as some—like California Democrat Adam Schiff—have claimed Trump’s actions closely match the definition. Few in U.S. history have ever faced charges for it, and the threshold is to be an active participant in extreme violent rebellion against the United States.
Whether sincere or not, Trump—at one point during the day—did encourage rioters to go home, while investigators would need to prove his intention in telling people to march to the U.S. Capitol during his speech on Jan. 6 was uttered with the full knowledge they would successfully breach the building’s perimeter and stop the count.
Democrats could be wrong
Those favoring Trump’s prosecution say it’s important to demonstrate that no figure—even a former president—is above the law. But the stakes of such a decision are inherently political with incredibly high stakes.
Trump is still an active candidate for president. He also commands a massive following and is still a bona fide competitor to win the Republican nomination for president. A loss in the courts could provide Trump with additional ammunition to use against Democrats on the campaign trail and poise followers to continue to buy into his persistent claims of a deep state establishment seeking to bar him from office forever.
